Judge: David A. Hoffer, Case: 30-2021-1234321, Date: 2022-08-22 Tentative Ruling

Plaintiffs, Edwards Lifesciences Corporation and Edwards Lifesciences LLC’s (collectively, “Plaintiffs” or “Edwards”) Motion for Limited Discovery to Oppose Defendant, Zintro, Inc.’s (“Zintro”) Anti-SLAPP Motion is DENIED.

Code Civ. Proc., § 425.16 (g) provides that “All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.”

“In the anti-SLAPP context, ‘good cause’ requires ‘a showing that the specified discovery is necessary for the plaintiff to oppose the [anti-SLAPP] motion and is tailored to that end.’ [Citation.]” (Balla v. Hall (2021) 59 Cal.App.5th 652, 692 (Balla).) (emphasis added.)

Here, Plaintiffs have failed to show that the requested discovery is necessary for it to oppose Zintro’s anti-SLAPP motion.  This is because Plaintiffs fail to appreciate that the anti-SLAPP motion fails on the first prong of the anti-SLAPP analysis.  If the motion fails on the first prong, then it follows that there is no need for discovery to oppose the motion on either prong one or prong two.

In its Anti-SLAPP motion, Zintro argues that the speech at issue, Zintro’s emails to Plaintiffs’ employees and their calls with the Dunn Group, constitutes a protected activity under the catchall provision of Section 425.16(e), which specifies that protected acts include “conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”  (CCP § 425.16(e)(4).) 

Without deciding the merits of Zintro’s anti-SLAPP motion at this time, it appears, based on the evidence in the record, that Zintro has failed to meet its burden of establishing that the speech at issue is protected activity because it has not demonstrated that the speech was in furtherance of free speech rights in connection with a public issue or an issue of public interest.  (See FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149-153; CCP § 425.16(e)(4).)

Zintro’s communications to Edwards employees appear “too tenuously tethered to the issues of public interest they implicate” and “too remotely connected to the public conversation about those issues.”  (See FilmOn, supra.)  Zintro fails to demonstrate how its communications with Edwards employees furthered the public discourse regarding medical manufacturing.  There is no evidence offered by Zintro to show that the communications were made in an attempt to further the public conversation on this issue.  In addition, similar to the defendant in FilmOn, Zintro’s communications were exchanged confidentially between Zintro, its clients and the experts and were generated for profit (Zintro received $6,000 from the Dunn Group for eight interviews).  There is also nothing in the record to show that the communications were part of any attempt to participate in a larger public discussion regarding human health.  Accordingly, it appears that Zintro has failed to meet its burden of demonstrating that the communications at issue qualify for anti-SLAPP protection under the catchall provision. 

Zintro also contends that its “entire business model” constitutes conduct “in furtherance of” the constitutional right of free speech because its online platform helps to advance or assists the expression of a variety of First Amendment rights. (Anti-SLAPP Mt. at 8:21-9:4.)  Zintro contends that it enables people all over the world to connect with knowledgeable experts to which they would otherwise not have access, including journalists and attorneys, both of whom have recognized free speech rights under anti-SLAPP statute.  (Anti-SLAPP Mt. at 8:23-9:1; 9:20-21.)

However, as Plaintiffs point out, Zintro cannot rely on assertions that its communications supported First Amendment activities in connection with a public issue based on generalities regarding its potential clients.  The Court must look to the specific conduct at issue, not merely whether Zintro’s business in general could affect the public interest.  (See FilmOn, supra, 7 Cal.5th at 149 [“First, we ask what ‘public issue or [ ] issue of public interest’ the speech in question implicates—a question we answer by looking to the content of the speech. (§ 425.16, subd. (e)(4).).”) (emphasis added).)  Here, the relevant conduct is Zintro’s emails and telephone calls to Edwards clients, which, as explained above, appear not to qualify for anti-SLAPP protection.

Accordingly, the motion is denied.

The moving party is ordered to give notice.